Publication of list of fatalities in Operation Cast Lead

In the coming weeks, B'Tselem will publish data that it collected on the Palestinians who were killed in Gaza in Operation Cast Lead. Attached is an update on our work procedures in preparing the data. Journalists wanting a pre-publication briefing (the date of publication has not yet been set) please contact me by e-mail or phone at the beginning of next week. We have gathered much material (primarily medical reports and photos) that will not be placed, for reasons of medical confidentiality, on our Web site. If you wish to come to our office and study the material, please contact me.

For two decades, B'Tselem has maintained a comprehensive databank on all persons killed in the course of the violence - Palestinians, Israelis, and others. Information on Israelis, civilians and soldiers, in Operation Cast Lead are based on IDF Spokesperson announcements and on available Israeli sources.

Regarding Palestinian fatalities - number, identity, and circumstances of death - have been in great dispute since the beginning of the operation. Due to the large number of fatalities and the defense establishment's refusal to grant B'Tselem access to the Gaza Strip, the task took many months and was extremely difficult.

In preparing the list, B'Tselem's investigators living in the Gaza Strip investigated the circumstances of the death of every Palestinian whom it has been contended did not participate in the hostilities. This investigation included obtaining medical documents and photographs, and taking of testimonies of eyewitnesses. The compiled material was cross-checked with announcements of the IDF Spokesperson, lists disseminated on websites and Blogs of Palestinian and international human rights organizations, of armed Palestinian groups, and the UN Office for the Coordination of Humanitarian Affairs (OCHA). B'Tselem's request to the army for a copy of the list of fatalities it compiled was refused.

Based on its investigation, B'Tselem determined if the person killed took part in the hostilities. Palestinian police officers were classified in a separate category [see below]. Due to the complexity of the events and the large number of fatalities, B'Tselem was unable to gather in every instance sufficient information to determine whether certain persons were killed while taking direct part in the hostilities. In such cases, the inability to make the determination is noted.

The classification of fatalities according to whether they took part in the hostilities is based on a new approach of the International Committee of the Red Cross. The ICRC formulated the Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law following six years of study and consultation with international humanitarian law experts The study was initiated to clarify the circumstances in which a civilian is deemed, to be “taking a direct part in hostilities,” the objective being to strengthen the protection of civilians who are not directly participating in hostilities, and are thus not a legitimate object of attack.

Based on the findings of the study and consultation, the ICRC determined there were two categories of persons who lose the protection given them as civilians during an armed conflict between a state and an organized armed group.

1. A person who fulfills a “continuous combat function.” Such persons are legitimate objects of attack also if at the moment of attack they are not taking a direct part in the hostilities. This category includes persons whose continuous function involves the preparation, execution, or command of combat acts or operations. An individual recruited, trained and equipped by such a group to continuously and directly participate in hostilities can be considered to assume a continuous combat function even before the person carries out a hostile act. On the other hand, persons who continuously accompany or support an organized armed group but whose function does not involve direct participation in hostilities maintain their status as civilians and are not legitimate objects of attack. Thus, recruiters, trainers, financiers, and propagandists may contribute to the general war effort, but as long as they do not directly participate in hostilities, are not a legitimate object of attack.
2. A person who does not fulfill a “continuous combat function,” but takes a direct part in hostilities. Such persons are legitimate objects of attack only at the time they take a direct part in hostilities (for example, when on the way to fire a rocket, during the firing of the rocket, and on the way back).

In the case of doubt, the person is deemed a civilian, and, under the principle of distinction, is not a legitimate object of attack.

The fact that the person belonged to an armed Palestinian group is not, in and of itself, proof that the person took part in hostilities and lost protection as a civilian. Only persons who fulfill a “continuous combat function” are deemed to be taking a direct part in hostilities.

List of intifada fatalities

In addition to preparation of the list of fatalities in Operation Cast Lead, B'Tselem reviewed its information on Palestinians who were killed between 29 September 2000 and 26 December 2008. In making the review, B'Tselem had access to previously nonexistent information sources, such as websites of armed Palestinian groups, OCHA, Palestinian human rights organizations, and the IDF Spokesperson. All information relating to the fatalities was examined and cross-checked against other information sources.

Where the previously unavailable information differed from the information in B'Tselem's hands, B'Tselem's investigators reexamined the circumstances of the death. As a result, B'Tselem changed the classification in the case of 23 Palestinians, who were killed in nine incidents, from among the 4,860 Palestinians on the list. The organization's database has been corrected and the information on its website reflects the changes.

Classification of fatalities

The data on B'Tselem's website include the names of the persons killed, their age, sex, place of residence, date and place of death, and who killed them. Regarding Israelis who were killed, it is noted whether they were civilians or security forces. Regarding Palestinian fatalities, it is noted whether they were killed while taking part in the hostilities, where B'Tselem has sufficient information to make this determination.

B'Tselem emphasizes that publication of the name of a person among the list of fatalities, noting the person was a civilian, or was not taking part in hostilities at the time of death, does not indicate a breach of law has been committed, or that the person killed was innocent. Nor does it dictate any legal or ethical conclusion. However, in all cases in which the person was not taking part in hostilities, the security forces have the obligation to conduct an independent and effective investigation into the circumstances of the case to determine if their personnel acted lawfully. B'Tselem transmits to the relevant investigative authorities all information it has obtained.

Classification of Palestinian police officers

During Operation Cast Lead, Israel made it clear that every Palestinian police officer was a legitimate object of attack. Already on the first day of the operation, 27 December 2008, the Air Force bombed the main Police headquarters in Gaza City, killing 42 police cadets who were standing in formation. Officials stated, in interviews with the media and in official announcements, that the attack was justified because these police officers would in the future take part in hostilities against Israel, and that, in any case, every object belonging to Hamas was a legitimate target, regardless of the actions of the persons attacked.

It is very questionable that the Palestinian Police in Gaza, as an institution, is part of the combat force of Hamas, in the sense that its members fulfill a continuous combat function. Given the presumption that individuals are civilians who are not legitimate objects of attack, unless proven otherwise, police officers cannot be deemed a legitimate object of attack where no proof exists that they are integrated in Hamas's combat forces. However, since B'Tselem does not have sufficient information on the function of the Police in Gaza, and the connection between it and the organized armed groups, we are unable to state with certainty if the police officers were a legitimate object of attack. For these reasons, B'Tselem decided to establish a separate category for Palestinian police officers killed by Israel during Operation Cast Lead.